the four democratic-appointed justices voted to uphold a law passed by a democratic congress and signed by a democratic president, opposed entirely by republicans. the four other republican justices voted to strike down that lot entirely, all 900 pages of a law passed by a democratic congress, signed by a democratic president. only zero when the justice voted in a way you might not have guessed, looking at his background. a republican appointee, a relatively conservative justice, voted to uphold the law. it seems to me the last person you ought to say made a decision that is political, it ought to be john roberts. >> there is another piece about this law. my guess is very few people around the country get this legal matter.

i wonder if any of you have felt it was part of your reporting job to try to explain it, or have tried to explain it. that is, when massachusetts passed a similar -- a similar law, there was no constitutional run through. there was no question about the power to do that. and yet here was this major question about whether the federal government could do that. everyone at this table knows the difference. chief justice roberts went to some pains in his opinion to explain that difference. of course, you guys had 185 pages worth of opinions to try to put into a report. is that something any of you have written about, in the course of covering this issue? is that something you think is important to try to convey? or is it something people do not think about, do not care about, do not need to know? >> i did a piece about justice kennedy's conception of liberty

as something baked into the federal structure, which is different than the due process that might be the basis to attack a state mandate. i do think that distinction came up. maybe not enough. and i am not sure most people could articulate the difference between what the limits on a state-enacted mandate and a federally-enacted mandate might be. >> every time i wrote about it, i got an e-mail from somebody making exactly that point. "i have to pay car insurance in california. why is that ok?" it is not satisfying to say the federal government has different rights than the states. people should ask whether romneycare is enforced with a tax. >> to make a point about how

much we explain are not. often, we are limited by what we believe is the public appetite for the case. in this situation, i think almost all of us wrote heavy stories about the commerce clause, about the taxing power, about the legal issues undergirding the popular political question, both because we had a long run-up, and because people had an appetite for all-things health care. we had more incentive this time around than other times we have tackled federalist issues. the 90's were the big federalism era at the supreme court. readers greeted it unenthusiastically because it was difficult to explain. this time, everybody was so interested in the topic it was easier to explain. >> we were publishing big pictures of roscoe gilbert. [laughter] >> we have all talked about this aspect. there has been more interest in

this case than anything i have ever covered at the supreme court. i have been asked about it by literally everyone i meet who knows what i do. the appetite, believe me, has been there for stories both from the public and, more importantly, from editors. >> if his paper is to be believed, he called the case exactly right. >> how much preparation did you guys have to do for this case? i assume you read at least the major briefs. do you feel you need to read all the briefs? did you educate yourself on how the affordable care act worked, all 900 pages? how deeply did you did in in anticipation of this decision? >> i still do not know exactly how it works. but i reviewed the legal issues. that is what i felt like we needed to know.

we have lots of people at the paper who do know a lot about how it works, or will work, or will not work. this was another of those huge, huge things. i thought, in a way, it almost became unmanageable. there were some of the briefs. there was so much information. i think you depend on some people to point you to the ones they think are the most important, the ones they think will shape their argument on both sides. there were a million briefings on this by interest groups, and conservative groups, and liberal groups. after a while, i think we all had a pretty good idea what the issues were. >> i do not think our practice is terribly different from the justices. i read the briefs from advocates i trust. i read the briefs from interest groups who have something

interesting to say. i do not read every single amicus brief. nor do the justices. >> all of us had to figure out how best to be prepared. by mid-june, we knew it could come every day. most of us put our money on the last day. the trick was being ready for whatever they are going to do. do you go back through some of the briefs? do you go back to the oral arguments? how do you get ready? many of us had to pre-right different versions of what happened. you get selective. i went back to the oral arguments and the government brief, to look at their three arguments on the commerce clause, necessary and proper, and the taxing. probably all of our desks look the same. we were surrounded by paper. it is a matter of what will be most useful to you, when the time comes, to distill the document we get. >> i thought this was

interesting for many reasons. going into the argument, i think most of us thought the court was likely to uphold the law because of the long precedent on the commerce clause. then we sat to the three days of arguments, and i came out of it thinking they were going to strike down the entire law. not only did they not by the commerce clause argument, it looked like their view was we have to strike down the entire lot if the mandate goes. then they went to the medicaid argument, and they seemed to buy the idea that the medicaid expansion was unconstitutional. i went through a time of thinking that john roberts is not going to want to go along with striking down the entire law. i remember about a month ago, i said to my daughter that i thought they were going to strike down the mandate and of all the tax penalty. she said, how would you do that?

i will give you my homemade example. suppose there was a law that required american families to have children or pay a tax penalty. the first part of that, you would say, has to be unconstitutional. the government could not require you to have children. but the second part, if you do not have children, you pay higher taxes, that is sort of the way our system works. she said, put that in the paper. i said, i cannot. it is too simple for legal work. but i think that is how it will come out. >> too bad you did not put it in the paper. >> i did run a story that ran the weekend before the decision that said i thought they were going to split the tax cut. >> what was the morning like, last thursday? how did the day go? >> i think there were dramatically different. some of us were in the court room, which turned out to be a

blessing, because you could actually hear, did just, understand, have the chief justice explain what he considered to be the holdings. that is old school. we were up there for the better part of an hour, while the rest of the world was rushing down the stairs, making mistakes. david and jesse were downstairs. i would love to hear what that was like. i have not heard it yet. >> oh any of the things we did for monday is we had set up a system where we had certain code words that we would use. literally, we are standing no less than 10 feet away from where we are getting an opinion, but we wanted to make sure we could get it out as fast as possible. we stationed one person inside the press room. i actually had an open line to our bureau, waiting for the code words from mark sherman about what the decision was going to be. >> can you reveal the code

words? [laughter] >> summon and falconer. [laughter] >> it is really simple. upfold all, uphold mandate, throw down all, throw down mandate, premature. once mark got to the correct part of the decision and saw it, he relayed the code words to me. i repeated it back to him. i had in mind the football game where the referee misses what the guy says who calls it in the air. i wanted to be sure i completely understood what mark was saying, that we were using the right code words. literally, all of this happened in a minute. we filed. we split the decision. he read the majority opinion. i read the dissent. we ran from there. >> some members of the press can

sit in the courtroom, in the press gallery, which is on the left-hand side, facing the justices. usually, they get up and leave as soon as the decisions are being handed down, even though the court may go on to other business, like the supreme court bar, which can take an eternity. but there is also a press room one floor below, which has a speaker. you can hear the audio. as the decisions are handed out, the public information office will pass out copies of the decision. so if you are sitting down there, you can be on your laptop, transmitting. >> that is not quite true. they would not allow you to take any electronic devices into the rooms. we had to have two people, because we could not have electronic devices in the room. >> is that the usual practice? >> phenomenal usual practice, but i do not know that people

care so much. >> this is the first really big decision in the web area. it used to be that h-p had to do this. i remember in the stories i started, they can't of the opinion. alan ball he wins on a 5-4 vote. -- alan balki wins on a 504 -4 vote. everybody knows the decision for the past -- for the last paragraphs, that the university can use race as a plus factor. the reporters that had to jump said the university of california lost, a big defeat for affirmative action. turned out to be not true. all of us wanted to rush on this, but i wanted to look at the syllabus and go through each point and make sure i had counted the votes right. i thought there was a good

chance on the tax power that they might do it, but i stayed downstairs. it would be nice to be up there for history, but our website wanted to post something quickly. i wrote a couple of pieces in advance. one of them was, upfolded on the tax power. it took me a minute to go through. i called the desk and said, opposed the story on the tax power. but it was a lot of fun. there is always a danger. i did not watch the tv coverage. i take it some of you might have. there is always a danger of making a fool of yourself by being the first up with the wrong story. >> that was sort of the beauty of being in the courtroom. it was not unlike balki. as the chief announces his opinion, hopefully it takes only 20 minutes.

if you were about to-off with the first decision, you would rush off with "do not justify the individual mandate." he spends that out. then he runs on to the taxing level. it helps to digest all the different pieces. the thing that was equally helpful was the medicaid part. he said the medicaid expansion was struck down. unlike david, i never thought they would go that far. i thought that would be so dangerous to the spending power of congress, and they would not do it. but then he says, there is a remedy. it is almost like you in some ways were being fed a story, and

you could digest it in a way that was easier than what they had to do in the press room. >> the solicitor general must have aged 10 years. he was sitting directly in front of the justices, as close as this. roberts took that guy on a roller-coaster ride. down on medicaid. wait, wait. i felt bad watching him. >> that was the end of a three- month roller-coaster for him. >> you have written about this, i think. unless i am mixing you up with somebody else. >> the ultimate vindication? >> that is another fascinating story. i said he might have lost on

style points, but won his case. particularly the blockers on the left were merciless, taking the metaphor that he caught in his throat and was unable to speak about as a sign he had flubbed the case. anybody who follows the court knows they do not decide cases based on that. they also care a lot about the briefs. he insisted on keeping the tax argument in the case. made a very good presentation about saying, if you look at how the law works, it is not a mandate. you do not get prosecuted are taken to jail. it is a tax law. it works like a tax. therefore, it can be upheld as a tax. there was not a powerful counter to that. it is an interesting story. everybody wrote about how he had

lost the case at the oral argument. vary greatly overstated. it ends up that his argument turns out to be the winner. >> as you all know, scotusblog is now doing a live blog on decision days. on thursday, they had 866,000 people tune in at one point. more than 3 million hits to the web site by about 1:00 that afternoon. does that fact change the job that you do at all, the fact that people have, in effect, direct access to the news as it is breaking, easy access to the opinions of minutes after they come down? or is that such a different audience from yours that it does not matter? >> i will add that it is what we

do anyway. in addition to writing stories on opinions, but also right to the a p twitter site -- i also write to the a.p. twitter site. we have a very general office. we publish to everybody. they are doing what we started doing years ago. we just do it in a different way. >> where were you? i guess you were not in the press room, with no electronics. >> i was on where our offices are in the press room, reading the dissent, tweaking -- tweeting and writing. >> it has changed life completely four newspaper reporters. people want things very quickly. they want to be able to come to the web site and find out what happened. they want alerts. they want twitter feeds.

it is a huge difference. week, a little bit -- we have our-long meetings about what color possibilities could be, that we could make sure would be correct. we sort of disposed of saying health care upheld, because we thought it would be too much of a split decision. we went with individual mandate upheld or individual mandate struck, as an alert possibility. you think about these things that you never thought in a million years you would be thinking about. >> scotusblog is an extremely good work. lots of sources of information are good. i am delighted. >> unless anybody has something else to say about health care, maybe we should move onto other things. >> there is something else? >> was there something else? >> justice scalia did not have

anything to say or early on thursday. he did come up last monday, at descent from the supreme court decision on the immigration case, sb 1050. there have been remarks about president obama's decision to exempt certain people from immigration enforcement action, something obama announced after the case had been argued. let me start with david. you started covering the court about when scalia arrived. was this normal? or is this a step beyond that? >> it is a lot of normal scalia. i thought for 25 years that all supreme court's ended with a rush of decision in late june and a fiery scalia dissent. there has been almost no year. almost every year, there is a really scalia lambast one side

or the other. >> i can tell you when it started. the end of his first term, 1986 -- in 1987, nine minutes of him complaining about where the court had gone on the independent counsel statute. other memorable -- a gay rights case out of colorado. he has won just about every term. -- one just about every term. it is always vintage. it was interesting that he would go outside the record and complain about the order from the president on young people who were brought by their parents illegally and are undocumented. he got a lot of really negative press on it. a couple of people even suggested he should step down. frankly, i think he will still be doing what he does. >> i thought it was an early sign that things were going to go bad the rest of the week.

usually, when he is on the warpath at the end of june, it is not just one decision. somebody has let him down in a big way. there has been a lot of debate over whether scalia's dissents have helped or hurt his cause. he is well known around it. you have here scalia. early in his term, early in his career, he wrote very few majority opinions. he has strong, clear views on the law. he had some zingers that people could remember. the downside is that you have the impression, i think, that he has alienated some of his colleagues over the years -- justice o'connor, justice kennedy. he really lambasting them. it will be interesting to see whether there is any lasting divide between him and john roberts. >> speaking of lambasting,

justice alito's first oral dissent in 5.5 years in the previous week in the juvenile mandatory life without parole case. he orally dissented from justice geoghegan, the majority, sitting right next to him -- justice kagan, the majority, sitting right next to him on the bench. he was looking up most of the time. it looked like he was just reading from notes. he excoriated the court for, as he saw it, completely losing its anchors on the cruel and unusual punishment clause. was that a surprise, that he was so vigorous in dissent? out of all the cases, that pulled his chain so much.

it affects a relatively small number of people. a few juveniles who now have life without parole will presumably get reese sentenced and can get life with the possibility of parole. it is an important decision, but did not seem like the kind that would set somebody off the way it's set him off. >> he is a former prosecutor. the point you made it is interesting. on something he has done is take an entire category of people from an official penalty. no juvenile can be sentenced to death, no matter what. the juveni who committed a non-homicide crime can be sentenced to life without parole. all this recent decision said is you cannot automatically sentenced a juvenile to life without parole. you have to take account of their youth. that does not sound like an especially radical proposition, and would seem to be in line with what the justices do in

sentencing since the beginning of time. they take account of the facts and circumstances. it was unusual for him to dissent orally. bob wrote about this nicely, i think. an interesting interplay between justice kagan, who announced the majority decision, and usually does that job with great cheer, and is a lot of fun to listen to, and here, she sounded very grim. you did not know why that should be, except she knew what was coming. alito late into her in a way that must have been unpleasant to hear. it was probably her first experience on the receiving end of an oral dissent. >> she has not learned the stoneface yet. she cannot look around the court like it does not bother her at all. >> check your blackberry. >> it seemed to bother her. with that case, it did not seem to be going all that far from

what the chief justice decided in a previous case in which they said that everyone -- juveniles who did not commit murder should have a chance at parole at some point -- could not be sentenced to life without parole. the chief justice wrote at the time about how judges needed to have the ability to look at individual cases and make those kind of decisions. he was arguing against a blanket decision on that. it was a little surprising, i thought, in that way, that it got justice alito so worked up. >> justice alito was on the receiving end of one of those his first term. he wrote the 5-4 opinion in the lily ledbetter case. i think he viewed it as a matter of statutory construction. you have to file within 180 days. he wrote this opinion. i think he was unaware until

that day that ruth ginsberg was coined to deliver on oral dissent. she really delivered a zinger at him and the court that suggested they were blind to the idea that women were being underpaid. they had no idea that the men were making a lot more. the court was, in effect, countenancing that, and congress needed to step in and change the law, which they did. i am told that alito found that a welcome to the supreme court. [laughter] >> another fight with an oral dissent, the plea bargaining cases back in march -- i was out of the country, so i did not see the decisions or press can't bridge -- press coverage at the time. it strikes me that maybe after health care of those might be the most important decisions of the term, in the sense of how much future litigation they will spawn and how many people they will affect, since plea

bargaining is involved in 95 plus% of all criminal cases, federal and state. -- 95-plus percent of all criminal cases, federal and state. these see that as a case that will be important in the future? >> we played it really big. it may give rise to lots of litigation. i do not know, as a practical matter, and i think most people who do sentencing law will agree with this -- it is not going to get a lot of redo's. if you have to prove a lot of things like how your lawyer failed to deliver the fact that a plea offer had been made, and that other things would have happened down the chain of events. as far as i know, there has been one case so far where someone has gotten out on this ground. maybe it is a big deal, but i am

not sure. it is a big deal symbolically, because it brings the constitution to a dark area of the law. the court is really focused on trials. only three to five criminal cases goes to trial. -- paul -- not many criminal cases go to trial compared to those that are sentence. the court interpreted a recent narrowness of the disparity in crack and cocaine sentencing. that will affect people. i do not know that the guilty plea case will. >> a surprising part of this term is that criminal defendants won most of the big criminal cases, which is not the norm. there was the case about gps, a

drug dealer called jones, a nine-one reversal. they said the government cannot use a gps device without a search warrant to track everyone everywhere. there was the juvenile life without parole case we talked about. the plea bargaining case. and the one atom just mentioned, the crack cocaine sentencing case. in all those instances, the criminal defendant w. owen -- defendant won. there was a case where a lawyer abandoned a man on death row. there was a case in louisiana with hidden evidence. >> a. brady problem. >> another new orleans problem, where they hid evidence. it is always a surprise in a court like this, where the majority of the big criminal cases come out where the defendant and some of winning. >> you can search them though, right? >> the strips search case was

not nothing. but in all these cases, kennedy was in the majority, often with the liberals. he does have a sense of -- i do not know how to characterize it exactly right. but his sense of fair play is offended when the criminal justice system imposes disproportionate penalties. >> talking about what comes most importantly after health care, you have to take account of the message that was so strong in the arizona immigration case. he wrote the opinion that sent a clear message to the states that this is a matter for the federal government and, regulating people within the borders illegally. i thought it was a pretty strong signal to places like arizona and other states that have followed up with soda ash called copycat laws. there is only so much you can

do. they did let stand the one that could potentially lead to some racial profiling, the show me your documents 1. -- documents one. we do have to look again at immigration. given where they thought they would go, the majority decided in favor of the federal government. >> and the chief justice. >> sort of a warning that we will be watching to see how this plays out. >> that may be another instance of this jump-the-gun interpretation. everybody is focused on the "show me the documents" decision. but you need to read the opinion and understand how limited that holding was, and how broad the enforcement of federal power was in other parts

of the decision, before you can write properly. >> this flew under the radar because it came out on the same day as the health-care decision, but the court continued its strong position on the first amendment, with the lying about military medals. that came out on the same day as the health care case, so a lot of people did not see it. the court has consistently said that despite how despicable the language is, americans have strong first amendment rights to say what they want to. they said it with th animal crush videos. they said it on american flag issues. the have said it is your first amendment right to lie about whether you have a military metal or not. you can see the trend pretty clearly from the court on the first amendment. it just happened to come out the same date as the health-care decision. so it slid under the radar for most people. >> that was heard in late

february, the alvarez case on the stolen dollar issue. it took a while to iron out, just like it took a while to iron out the federal communications commission in decency, the fleeting expletives. they said there -- the first amendment cases are so different from the other issues. the often cut across the is ideological divide. clearly, it causes some problems as they are figuring out where to go. >> the thing i like about that case is it allows me to talk about my career as an n.b.a. all-star. [laughter] my various war medals and things i have done earlier in that career. >> the stolen valor case might have been even more satisfying if there had been a majority rationale. in fact, it was eight plurality which was a categorical, and two

justices come up with a proportionality test that is very hard to make sense of. >> have there been any inside rumors, the way there have been in the health care act, about what caused justice kagan to split from what would have been a solid five-judge majority? >> i have no insight, but it is perfectly consistent. when she was a young professor at the university of chicago, she did a lot of first amendment work. it was nuanced to the point of on readability -- unreadability. it is consistent with his concurrence. >> what is different between "usa today" and reuters, and are you working on another book? >> do not make her talk about

that. >> and is there any competition? >> the new book is not a biography in the vein of the o'connor and scalia books. this is more anatomy of nomination politics, looking at the social and political history that led to the appointment of sonia sotomayor in 2009. i track developments from the year of her birth, which was the era of brown versus the board of education and hernandez versus texas, when latinos became a protected class. it means of neatly with her life. it is mostly going to be a political book. i was working on it really intensely, getting a lot done. but my new job is a little harder to go home at night and work late on. it will probably come out in 2013. she is doing her own memoirs. >> there is competition.

>> from the woman herself. but since mine is not a biography -- >> what is she now? >> she said hers will come out in early 2013. >> i hope it does, because i can modify what i need to modify. mine is more about the political history. a whole chapter, for example, about a man of people thought bill clinton might put on the court. there was a controversial nominee to the d.c. circuit under george w. bush. you can await that. reuters is a wire service, like a.p., but i am not quickly filing alerts the way jim of the done.- jim matheny had i look at broader trends. i do not have to file every day,

but it is the wire, so you have to fill a hole faster than you would for the newspaper. >> is anybody else working on a book they want to out? >> not yet. >> you did a biography of justice o'connor. are you still in touch with her? what is she up to? >> she is on an airplane. she is always traveling. i asked if she would be in the room for health care. she said, "i have so much planned." i asked her if she had an instant. she said, i have not even had time to read the statutes. do you know which way they are going? no clue. it turned out that she was in the courtroom the week before. all the speculation about when it will be handed down -- nobody knows until the writing on all sides is finished. she did not know exactly when it was going to come.

she could have suspected, the way we did, that it would come on june 28. she was in the courtroom the week before. in many nervous when she showed up. but it was not for a big case. she was not even there for the arizona emigration case. she is still doing her sixth thing, out there all the time as a very active retired justice of the supreme court. >> i did a feature on her last fall, all the things she was doing. when i was interviewing ar, joan does such a good impression. i kept thinking, she sounds exactly like joan. >> i spent way too much time with her. >> i do not know if you guys could see from all the way across the court room, but justice stevens walked in and took a seat in the special guest area. he seems to be doing very well at 92, making speeches and giving opinions on cases.

are the current nine active justices in as good shape as he is? are there any retirements likely to be seen in the next year or two, do you think, for health reasons or otherwise? >> one of the things i did before covering the supreme court and the warehouse is a covered south carolina and strom thurmond. i am pretty much used to them staying around forever. [laughter] >> the general view is the summer we know we are free to go on vacation is the summer of an election year. nobody willingly retires during an election year. before we all had up, i am sort of assuming nobody is leaving this year. nobody seems to be in bad health. after the next presidential election, the year after, people will start talking about retirements. fortunately, it is quiet on that front this year. >> the physical renovation of

the courthouse has been going on five or six years now, and must be nearing completion. has that made a difference to the court? has that made a difference to the press? for a while, the public information office was in a trailer outside. i am sure it was a great improvement when that phase finished and you moved back into the building. >> i do not think it affects us. it's still bugs justice prior -- it still bugs justice breyer that you cannot walk up the steps and go up the front door. >> it does let you use the metaphor "closing the courthouse door." it is an imperfect metaphor. if you look at the court building now, they have to do repairman -- repair on the front from the earthquake. a lot of the front of the courthouse is now covered with these sheets.

they said they are putting up a scrum that will resemble the front of the courthouse, so you can see a pretend supreme court while they fix the real one. >> the modernization that you asked about is completely done. the new work is a different project. closing the courthouse doors was declared by them, by the justices. it did not have anything to do with modernization. >> let us spend a few minutes on next term, before i open the floor to some questions. almost lost in last week's news was the third petition fired by paul clement asking them to book of the defense of marriage act case. he is representing the house of representatives. we are likely to see important voting rights act cases from the sea, and affirmative action case from texas, and perhaps the

same-sex marriage case from california. any thoughts about what next term is looking like? >> the case we know they have taken is the affirmative action case out of texas, which might bring us full circle. we do have a court with five members who are very skeptical of race-conscious government action, including university of admissions policies. while that case has vehicle problems and comes from a place with an idiosyncratic admissions process, fisher against texas is a big deal. i think they will take the doumit case. they love giving paul clement an opportunity to get back to the lectern. if same-sex marriage people had to choose between whether a federal law has to track benefits in states where people are already lawfully married,

not shoving marriage down the throats of anybody, but merely making the federal law congruent to state law in an area where state law has traditionally governed, that is a simpler and easier question than the proposition a case would present. >> i agree with that. on affirmative action, the thing to watch is whether it will be a texas-only case or a national case. >> i would bet the white plaintiffs are going to win somehow in that case. otherwise, there would not have taken it. texas had a top-10 system. the top 10 graduates of high schools around the state were automatically admitted to austin. they had a good amount of diversity through that system. in addition to that, texas started using race as an emissions factor. the challenge is really to the extra use of race.

the court could say as long as you have got diversity through this one system, you cannot go beyond to consider race. that would be essentially limited to texas. on the other hand, they could say more broadly that any use of race is unconstitutional, and we disavow what was said in the michigan case. that would be a big deal that would affect universities all around the country. >> it is interesting how different it is around the country. california has a constitutional amendment that disallows using race in college admissions. it is interesting that this case comes from texas. it seems if there was any legislature that would rule that you could not use race in university admissions, it would be the texas legislature. i do not know why that is the place for this case.

but it makes it even more interesting, i think. >> a little side note, since this is a legal audience. texas had urged the court not to take the case. texas is a generally conservative state. it is a republican attorney general. they did not want the court to go further on restricting affirmative action on campus. after it was granted, texas hired a lawyer who used to be a solicitor general. in our group, the hiring of him upped the stakes in some way, in terms of what the representation would be. he has a very fine reputation. he won the naples case we talked about. it will be a well-fought case. in some ways, to have somebody with the conservative credibility of having been in the bush administration as solicitor general, and coming at this in a non-illogical way --

non-ideological way, will help texas. >> he did a good job in lawyering through a difficult case involving a christian legal society and a law school, and whether it could bar gay students from leadership positions. so i agree with john that having greg in the case makes it more interesting. >> let us open the floor to questions. i am going to give up my microphone. staff will stand with the microphone. come to it so you are able to be heard. >> i have a quick question. with regard to the health-care decision, not so much the health-care decision itself, but the medicaid part of the decision that was struck down, the reason i ask this is in my

law practice, i deal a lot with severely disabled children. i have also announced that i will be running for governor of virginia as a democrat, at least in the primary. from a practical point of view, i do not seem most turning down the medicare expansion. maybe a state like virginia, if a republican is elected, i could see that happening, but i do not see the majority of governors turning down that expansion. what is your thought? >> had toured the mike -- head toward the mic with the next question. >> the federal government will pay for 100%. in principle, you might say, i

do not want to expand, but you would have to explain to the public that i am turning down millions of dollars in federal funds to pay for health care for poor people, and our tax money is going to go to other states that are getting it. i would think as a practical matter, even if a lot of states did not like the expansion, that down there will say, ok, if you are paying 100%, we will take the money. >> some governors are saying it goes down to 90% later, and even the 10% is a budget buster. i think i read that florida has announced it will turn it down. >> south carolina as well. i think it is a decision that does not have to be made at this moment. it is easier to say right now, we are not going to do it, then it might be later. >> it is a great read state-blue

state divide. i would think the blue states would say, be our guest, if that is what you want to do. >> if a couple of states opted out, maybe it would not have a big impact. but if it was a patch work around the nation, which into possibly seat and an enormous emigration of old, sick people into the states that adopted index and maybe the states that are losing all their old, sick people will say -- people who need medical care. >> all people already have it. but poor people -- we are talking families that make up to $25,000 a year. these are authentically poor people. those people could lose out. those poor people would be wise to move to a state where they would get medical care. >> it is hard to imagine that

over the long run that a state is going to turn down that type of money permanently from the federal government. governors change. political parties shift. it is easy to say it right now, before you are getting any of the money, that we do not want it. it is hard to see, 10 years down the road, that a single state or two is going to say, you other 48, take our money. it is hard to see that. >> what i wonder more is whether a lot of people will decide to opt out of the insurance purchase and pay the tax penalty. you can save yourself thousands of dollars a year by making that choice. if you know, if i get sick, i can buy insurance, why not save that money and use it to have a better life in the meantime? >> the people might legitimately made that choice. the law allows it to happen.

there are no civil penalties for it. but the thing is, what do you have? if you put the money into a health insurance policy, you have the health insurance. if you pay the tax, you have just given it up. it is a valid question, what people will do. >> if i were healthy and 30 years old and could have an extra $2,500 in my pocket to go to the movies, take a vacation, by an engagement ring for somebody, maybe i would rather have that, knowing that if i get sick next year, i can get insurance. >> you are not 30. >> i am not 30. i have insurance. >> in my mind, there is an inconsistency in justice scalia not looking and legislative history, but giving a lot of weight to original thinking. it would seem to me that you can do one or the other.

i think if he would look at what somebody from south carolina felt about the constitution in the 1700's, it would be different than what somebody felt in new york. i was wondering if anyone on the panel could reconcile, to my mind, that inconsistency. >> we have been to have escalated expert here. >> i should defer. -- a scalia expert here. >> i should defer. >> he goes back to the framers. his beef on legislative history is that it is not as contractual as the 18th century information, because it is not what was actually passed into law. he says the speeches on the floor, the committee reports, and the artifacts of legislative history are not what got signed into law. the bill got signed into law. that is his argument.

it seems inconsistent to plenty of people for plenty of different reasons. the majority of the supreme court still has a high regard for legislative history. >> i think they can be reconciled. he does not want to know what was in the minds of contemporary the legislators when they passed a law. he wants to know what the words meant. he does not care about intentions. he wants to know the original public understanding. i think that is not very different from reading the fine text of a statute. >> i have a question about the affirmative action case that is coming up. i just want to hear a little bit more about it. i had heard that potentially the decision -- justice roberts was potentially lining himself up to strike down affirmative action. if you have any thoughts about which way justices might go, or which way they might be swayed,

i would be curious. >> i think justice roberts has made it clear that he has little use for affirmative action-type programs. you will remember that he wrote the decision in seattle cases in which race was used as a way to balance out school populations. he was quite critical of that, and was only held back from saying the schools could not use race at all by justice kennedy, who was not ready to go that far. he came up with sort of a different test that can be used in this situation, but not that situation. it seems pretty clear that there are a least for a very strong votes, and then just as kennedy. >> we have had four new justices join the court in recent years.

almost none of those matter, in terms of vote switches. there were basically 141. the one that matters was alito for o'connor. it means the same group of five now tilts the other way. i think there is some reason to think the affirmative action regime we are used to may go down. >> this is the 50th anniversary of maker versus car. -- carr. i worked as a law clerk on that opinion. something that struck me recently, looking at cases regarding representation, was the opinion of justice scalia that it is not a usable basis

for upholding are drafting legislation, much less judging it as a justice. apart i think justice warren is turning in his grave at that notion, since he thought that fairness was indeed the touchstone of all appropriate judicial thinking. i wonder what thoughts you have about, first of all, whether maker achieved anything. warren wrote it was the most important decision of his tenure. i wonder whether it has been lost in its effectiveness because of the prevalence of the view that there is not a judicial standard by which appropriate legislative districts can be formed. the other aspect about it is it seems to me that brown versus board, which is what was most

remembered, has also been put in the ashcan. a recent "new york times" article wrote that racial segregation in public schools now is greater than it was in 1954, in particular in our vote -- in urban schools. >> the impact is hard to measure, but i would guess in the 50 years since then, if you were studying, that legislatures around the country are more fairly reflecting the people of the states. they reflect the city's. that are not dominated by rural interests the way they were before. my guess is that baker had a profound impact around the country. but it is hard to measure. it just says the district should represent the people. the people live in the cities. there should be more representatives in the cities and suburbs.

somebody in the state legislature represents a thousand people in the rural district. i have to think that has a big impact. >> we have time for at least a couple more, i think. if anyone wants to line up, feel free. >> we did not see specific fallout from the narrower interpretation of the commerce clause, necessary and proper clause. other cases on the horizon were the court will be able to put that into action? if so, where the think they will come out? >> that is a good question for one of my colleagues. [laughter] >> my sense is that the commerce clause holding, if it is holding -- there is a lot of controversy about whether the five votes in the commerce clause amount to a holding has any teeth.

there is reason to say no. the decision itself said the mandate was novel. that would make you think that existing laws are insulated from challenge. it would also make you think the same -- that no sane congress is going to use it may be that this great ruling applies to an old set. >> i think that might be right, too. the solicitor general -- the court a very much wanted him to give some living principle in the commerce clause. anything he came up with is that health care is different from everything else and health insurance is different from anything. there really is no other law like this. they was not particularly satisfied with his answer. that was the government prosecute. there is nothing else like this out there.

>> on the spending cost side, i bet there will be a ton of litigation about what conditions are ok and not. that had seven votes behind it. that opens up whole new field of constitutional law. >> it is interesting the criticism i have seen so far. it has come from the republican side. i thought there would be a lot of optimism on the liberal side. the federal government has twisted the arms of the states to do things that the aclu does not like, for example. reducing the speed limit to 55. having every state have a megan's list. it is a long list of things the federal government twists the states' arms to do. >> justice breyer and justice kagen joined that holding. it was a surprise. i thought it was a matter of

how the law was supposed to work. i thought the notion was in the spending clause that we will give the state a certain amount of money for something, and if you take the money, you have to follow the rules. you do not have to take the money. i thought justice roberts was restating the basic principle. it has to be a deal that the states can say no to. the thing that came up in the oral argument, there is a hypothetical argument of, your money or your life. you do not have to pull the trigger. just holding the gun is the threat. arkansas can say, we are reluctant to do this medicaid expansion. it seemed to be the law was written. they can turn around and say, ok arkansas, you could lose millions of dollars if you do not go along with it.

i think they have restored the principle that there has to be a deal that the state can either choose to opt in and take the money and accept the rules or turn it down. >> i am pretty curious about the case the supreme court heard in february, i think it was. it went from being whether corporations can be held liable under the statute and now it is a matter whether he meant rights occurring in other countries could beat handled in the united states. i am curious about where you think the decision will go. >> to give you a touch more background, there is a law. it is very ambiguous. it seems to allow some kind of lawsuits for human rights abuses. some courts have said, including for human rights abuses committed by foreigners abroad against other foreigners.

the case gets to the court on the very narrow question of, can you sue a corporation? can use to a corporation for being accomplices in human rights abuses abroad? when a case was argued, some of the justices said, wait a second. why are we talking about corporations? why is a u.s. court and telling the case that happened abroad? they're asking the larger question of whether the statute should have application. where is it heading? it seems that some people are interested in the larger question. the answer may become no. >> my question is about that improper reporting that was done early on in the health care case. law students learn early on you need to read the whole decision before you can decide what the case is about.

lawyers know that well. i am wondering within the press corps, will there be some new rules or standards that are adopted by some media organizations to try to prevent what happened from happening again? >> i will do reports of the court steps. [laughter] >> there has been a lot of talk of going forward and how to make sure that does not happen again. >> atop the occasional law school class. -- i taught the occasional law school class. anytime i tried to have them read the whole opinion, they would go out of their minds. [laughter] >> they should know what we are talking about beforehand.

this was a very difficult, complex decision to be able to read in a couple of minutes and digest. honestly, if you were sitting in the courtroom, you have to wait a long time to figure out what happened. those of us downstairs, we were able to flip through the decision fast and find the key words. but if you did not read the entire section, it is easy to see how that miss a could be made when you are trying to do this. >> i would give a shout out to our colleague. i asked him how he would handle this. will the house of out there are run the opinion to him? he said that he would get it himself and read it on the way. that worked well for him. he is a very smart and careful

guy. >> he said the hardest part was not reading the opinion, but getting through the crowd to the stand. [laughter] >> pete is terrific. there were not many tv networks when i was there. pete was in the best position to report this. he knows the court. he knew the case while. i feel bad for the people who are out there. they have got themselves in a bad situation of trying to say, we will be on the air live and report this instantly, when they did not even have a chance to read the syllabus. someone is calling out to them and saying -- someone higher up in it the organization said say, let's not try to beat everyone to report this.

it will take a few minutes to read the decision. then let's go out and report it. let's not get on the air live and try to beat everyone. >> the only part i would disagree with is that -- be our competition. that is what we do. but what of the things of the drill is first, get it right. there is no way you are going to read one bit of a supreme court opinion and get it right. you still want to be first, but you know you have to read before you can commit anything to paper -- i guess now, computer. >> for the historical record, does anyone know who was first with the correct headline? >> i can say that "the associated press" is handed out

at 10:07. there may be some arguments about seconds. 10:07 at what? but i can say we were not the first. >> [inaudible] >> i do think my colleagues came really close. >> i do know this much -- "the associated press," "rueter," and bloomberg were there. >> i think that bloomberg had it first. [laughter] >> on that note, i am sure c- span wants to keep to its schedule. thank you for coming. please come again next year. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> wednesday on "washington journal" an update on afghanistan, including the role of marines and dealing with the taliban. our guest is a major general david berger. and edwin feulner on his book, "making the case for american exceptionalism." beginning live on wednesday, 7:00 a.m. eastern time on c- span. >> people thought it was the place where "star wars" began.

i started taking the techniques i have used in the tunisian and expanded on them and improve upon them until it got to the point where my twitter followers -- rather being in the studio and an ear piece giving me the latest info, i was sitting on a park bench with my phone. i could essentially do coverage and revolutions and fact check and a bunch of other things. >> you could watch this whole event as part of our july 4 primetime. it also includes a discussion on the history of the statue of liberty. we will also have commencement speakers from elon musk, the founder of tesla. >> of the life of a sailor means

scrubbing the deck in the morning, working on a sales, whatever the duties that are assigned. at the end of the day, you are ready for some rest. you do not get a full eight hours of sleep. it is four hours on and four hours off. >> the life of a man on -- >> it was always carried by a petty officer. the thing a sailor never wanted to see was a petty officer who is getting ready for a flogging. >> and former ambassador to afghanistan, he is criticizing the obama administration for not protecting what he called an image of steadiness in afghanistan. he spoke at the brookings institute. this is 90 minutes. >> good morning. welcome to brookings. thank you for coming out on the third of july in these difficult times of commuting and the weather. we appreciate your commitment to the afghan mission. we appreciate a commitment of the two gentlemen here and the men and women in uniform and

civilian the time here. i am from brookings. we will spend the next 90 minutes talking about national development and the ongoing state of his agency's efforts and the carter mission in afghanistan. the way we will proceed is that alex will speak with some prepared remarks. then we will have a panel discussion and ultimately go with you. let me say a few words about these two remarkable testament. first, ron. he had a broken leg and rest. he thought through and continued his commitment to afghanistan. he was ambassador 2005-2007. he was also ambassador to two other countries. his father had also been an ambassador to afghanistan in that 1960's. there will be ed trivia question at the end -- a trivia question at the end.

our featured guest and opening speaker is alex. he is the lead director on the pakistan portfolio. he has a longstanding commitment to afghanistan and pakistan. in the 1990's, he worked with the united nations in afghanistan during the difficult times of civil conflict. he has been distinguished scholar at the u.s. institute of peace. he has commitment to many issues. he has obviously a huge portfolio today with afghanistan still. a lot is about to change. we can be in today in the preparations for the tokyo donors' conference. a lot of people were paying attention to the nato summit in may. it is no less important than the upcoming tokyo conference next week.

donors' money to talk about their current and long-term commitments to afghanistan and what strategies might back the ongoing efforts. alex, we are thrilled to have you here to keynote this topic. please tell me in welcoming him. [applause] >> thank you. it is a real honor to be here. thank you for coming out. i cannot help remarking that yesterday morning, we have a large and video conference with afghanistan to discuss our ongoing efforts to develop national gas and power project

in the north of afghanistan. we almost had to cancel because of lack of power in washington, d.c. but really, it is a pleasure to speak alongside two people who have been indicated so much to keeping our engagement in afghanistan on track and honest and an eye to solving problems. michael stole my line. when you go to the embassy and you see the remarkable roads, maybe it is because of the moments, but the father and the signs are right below each other at the moment. that is a record of a multi- generational service and its perspective on the country. every time i see michael, i am reminded of the incredible work he has done.

particularly when i saw his work. incredible graphics that are run through the new york times for almost a decade. i think it is rare that you see a data set that is expertly presented. it can change people's opinions, if not thousands. it certainly did for me. we are in the midst of a political, economic, and security transition in afghanistan. to my mind, it will likely the future of the country and the region for decades to come. for this to succeed, it is going to require an enormous degree of sustained commitment. after 10 years for many people, that is asking a lot. first, this commitment has to come from the afghans and their leadership. but it also needs to come from us and our allies in the international community. together, we must overcome the ghosts of 1991.

at that moment, after about 12 years of international, intensive focus on afghanistan, it was a turning point. but it was the point when the world turned its back on afghanistan. they made a summit in chicago, the donors summit coming up in tokyo this week, the u.s.- afghan strategic partnership, are all about showing the afghan people and the taliban and the original actors and our allies, and indeed, our souls, that after another decade a joint action and investment, we're not leaving afghanistan to the wolves. the lessons of al qaeda and extremism left unchecked is not lost. the stability of this region

matters to u.s. foreign policy. this is what president obama said, "we are building an enduring partnership. the agreement we signed today sends a clear message to the afghan people. as you stand up, he will not stand alone. it establishes our cooperation over the next decade. we will combat terrorism and strengthen democratic institutions. it supports out in the commons -- developments. there be transparency and accountability. and to protect the human rights of all afghans, men and women, boys and girls."

our relentless focus for the past several years has been to get results from our investment of taxpayers' dollars in afghanistan and make them sustainable over the long term. in the last decade, we have helped afghanistan to develop more rapidly and reaching were deeply into a society than in any previous decade in their history. i realize that some of the commentary and reporting that is passing for conventional wisdom these days. let me repeat it, we have helped them develop more rapidly than any previous decade in their history. i know this because i first decided to go to afghanistan in that fateful year of 1991. for four years, i witnessed a civil war that was part of the systematic dismantlement of afghan society and state. as a result, a decade ago,

afghanistan ranked among the world's lowest for life expectancy and literacy, and the highest for infant and mortality. one-third of the afghan population were refugees. more were leaving. another third were dependent on food aid from the international community for their survival. half of the population, after an women, were about to be plunged into darkness and institutions by the taliban in 1996. over the last decade, we have invested approximately $14 billion worth of civilian assistance to afghanistan. this is a significant figure. but it is important to remember this is the equivalent of roughly four-six weeks of the costs of our military campaign.

let me give you a few examples of some of the progress we have achieved before going on to talk about what is happening next. there is a report that was available outside that we released recently. it outlines some of these things statistically. it talks about the results we have achieved. for example, gross domestic product through economic growth in afghanistan has been about a to-10% per year on average for the last decade. wouldn't we kill for those sorts of figures. per-capita income has risen, basically tripled, create millions of afghans out of property -- poverty. think of public health. life expectancy in afghanistan in the last decade has increased 15-20 years. that is the largest increase in that time period. infant and child mortality have

plunged below the previous highest in the world mark. over 60% have access to basic health care. a decade ago, only 6% had access. in 2001, approximately 900,000 afghan children almost exclusively boys, went to school. today the figure is over a million children in school. over 35% of them are girls. there are lesser known, but equally important statistics. if you look at energy, there were handout passed out. the number of energy connections in megawatts a bill in afghanistan has soared. they now have 24-hour reliable power. we have worked with the afghan

utility, which did not even exist five years ago. it has gone to only $40 million today. they are well on the path to sustainability. they have increased eight fold over the last several years. it has doubled in the last few years. if the afghans will sustain the progress, it will have to come from their own economy and their own revenues and their own private sectors. i want to say that by no means have all of these projects been successful. we are aware of that. we have tried enormously to learn from our past failures and make significant reforms over the last few years in the way that we do business.

i will not go into detail, but i encourage you to look at the report. a few things. in afghanistan, we issue the first sustainability policy. and to cars us to examine every single project that we do to ensure -- it requires us to examine every single project that we do. we issued something of accountable assistance in afghanistan. it has limited increase in betting for contractors and dramatically increased the level of staff an oversight that we have to make sure that we are safeguarding were taxpayer dollars are going. we have also signed on with other donors to some of the best and boehner practices that have emerged -- donor practices that have emerged. bottom line, afghanistan, although one of the most challenging places in the world to do this kind of work, we have also decided to make sure it the -- it is using the best

practices or have the biggest portfolio. what i want to say is that this progress remains fragile. due to ongoing insurgency, lack of a political settlement, corruption, impunity, and institutions and is decided that remains a week after 30 years of turmoil -- and a society that remains weak after 30 years of turmoil -- i am often called to ask, what is normal for the people of of afghanistan? how did they see their own future?

what is it that we need to do to break those patterns and overcome the ghosts of 1991? the din from the last 30 years, -- judging from the last 30 years, what you saw was constantly shifting sands. regimes, invaders. they come, take their toll, and are swept aside. but i believe we have the chance to help them change this dynamic. this is the heart of what we are trying to accomplish in tokyo. tokyo is not just a conference. it is a process that has included a year of dialogue and debate. it is leading us to understand together how we can secure afghanistan's future.

we have to accomplish, i believe, four things. first, i have outlined that there has to be a long-term commitment to afghanistan. we have to convince our partners and the afghans and ourselves that we are not leaving afghanistan in the lurch, even as transition moves forward. we have to cement the incredible gains of the last decade. we have to address the potential factors are causes of instability, like the economic impact that the withdrawal will have on afghanistan's economy. second, we have to set priorities. we cannot do everything in afghanistan. the needs of afghanistan are virtually endless. with a donor funds going down and this transition going forward, we need a narrow,

achievable set of priorities that need to be focused on a few critical things. private sector led economic growth, and enabling environment that will allow that growth comment better laws, and human capital development. in other words, cementing the gains and making them more ready to become part of the workforce. third, there needs to be reforms. these reforms in government and on economic policy will enable a successful, economic, and political transition. a failure to make some of these critical reforms will disable that transition. finally, as someone who has watched this process intensively over the last decade, we need clear follow-up mechanisms that will set and

tracked benchmarks, so that we know where and how we are on track and where we are off track and how we will correct the process. we also need more effective means to incentivize some of the types of reforms that i mentioned. what you will see coming out of tokyo is something that tends to find all of these four things together in a mutual and accountability framework. it is a framework that is in agreement between the international community and the afghan government. it is about how to gather, we will achieve those four objectives. i close by saying that i believe that these changes, these commitments, the is reforms, and the need for real results, are no longer nice to have a. they are imperatives if

afghanistan is going to avoid it prior fate. there needs to be a transition away from what has been a donor-led economy to an afghanistan that is much more self-sufficient. there needs to be integration. finally, we need is successful political transition. i think it is absolutely fundamental to remember that the peaceful transfer of power that must happen in 2014 will be a historic first for afghanistan. not only in this era, but ever in its history. you did not get to the second one without going through the first one. at the end, i think that we look at afghanistan with these

realities in mind. the troop levels are going down. over all, donna investment over the next decade will decline. to an economy that is much more self-sufficient. there needs to be greater regional integration. afghanistan and its region are one of the least integrated in the world. finally, we need a successful political transition. i think it is absolutely fundamental to remember about the peaceful transfer of power that must happen in 2014 will be an historic first for afghanistan. not only in this period, but ever in its history. you do not get to the second one without going through the first one. at the hand, am -- at the end, i think we look at afghanistan with these realities in mind. the troop levels are going down. overall donor investment of the next decade will decline. at the end of the day, we must be there to support the afghans throughout this process, but the afghans and their neighbors will have to make critical changes in order to succeed in this process. thank you for your time. it is a pleasure being here. [applause]

>> [inaudible] >> i think we are good to go. congratulations on what you and others working on behalf of the government have accomplished in afghanistan. there is no doubt there has been remarkable headway in so many areas. it is one of the distinctions, frankly, between this effort and many other efforts were going to a conflict zone and it can be difficult to see the quality of life gets better. that happens afghanistan, too, but the amount of headway you have made is quite remarkable. i know we will want to juxtapose that with the broader question. the broader state of afghanistan, that is the title of our discussion today.

we are focused primarily on development and governance matters. that carries over into politics and corruption matters. an end to the entire mission. we're going to broaden -- and into the entire mission. we're going to broaden the scope a little bit. you can ask anything that you wish. i will invite ron to comment on whatever. those of you have not -- who have not read it, i will plug his book. his broader observations on how afghanistan is going. ron, over to you, and thank you for being here. >> that brought an invitation which still needs to be contained in 10 or 12 minutes is an invitation into chaos if he were not disciplined.

while i am out of government, i speak only for myself. i am clearly invested in many aspects of afghanistan. i cannot claim to be a wholly disinterested observer. that is a particular project in which i was deeply vested. i shifted some of our funds to get some of that done. i get criticized for some of those decisions. drive around the city which is no longer a black city at night. what i would like to do for these units is to try to reflect on a few broader realities of afghanistan and of our working there, which i think it is rather short shrift in our discussions.

it complicates your life. i am skeptical of some things, but the first thing i want to talk about is this business of developing capacity. we use this phrase and the people in the business understand it. by and large, people outside do not understand it. there has been a huge gap between military and our civilians, for instance, in the difference between training and developing capacity. in that gap, there has been a demand often for progress very fast. somebody said to me, the problem

is that we do not have synchronization between the military, our economic and political strategies. if you mean that in the two years we have left before we turn the security over to afghan lead, we are supposed to achieve a really modestly well functioning government, you are asking for a rate of progress that has never been seen in the 60 years of post-colonial development or the world. you are asking for something that cannot be done and then you are blaming people for not accomplishing what was never possible or feasible. there is a need to get realistic. there is real capacity development in afghanistan. you mentioned bill collection. this is a very interesting example. the outfits that collects bills is making major progress in bill collection. we have beat them over the head on that issue for 10 years. it took 10 years of work to

transform a bureaucracy that was based on a large sheet patronage and corrupt model and was antiquated. into a bureaucracy that is now collecting bills, which means they can pay for things like fuel. this is a critical piece of keeping the light on. i use this example because it is an example of progress. on the other hand, it is an example of how long it takes to achieve progress. we strained at this as americans constantly. we want things now. 24-hour news cycle. it won't work that way. i remember talking to a first- aid director who told me about to go into the education ministry in the early 2002. they went to a building where they had no glass in the windows. they groped their way down a

dark hall to find the minister of working by the light of the kerosene lamp with no power in the building, no computers. on the one hand, you have enormous development from then until now in their educational system. 8 million kids in school. on the other hand, you have enormous gaps. i raise this to illustrate the reality of where this country is coming from and how long it takes to get changed. we frustrate ourselves enormously. we also waste a lot of money sometimes by trying to do things at a rate of speed which is unrealistic and criticizing the program for failure for not doing what is impossible. does not mean there are not lots of things to criticize, but we have to get a certain amount of realism.

this goes back to the difference between enthusiasm and implementation. we have been bedeviled and afghanistan by repeated enthusiasms to charge off in new directions. this is also exacerbated by our short tours. i believe we will never -- until we leave people in place for a least two or three years. you cannot build a learning organization on the basis of going once a year. we tend to -- everyone who comes in at new wants to find out what he or she ought to change. the result is a program exhaustion on the part of

afghans to look around and say, this is the fourth, fifth, sixth person who has changed the program. why should i exert myself when it will change and a year? -- in a year? we jerk things around. that was bad enough for me had a lot of money. but now, we are going through an enormous process of reducing the funding. there will be a double economic shock because it is not all of the foreign aid funding that is going down, it is a huge amount of the economy that has been bolstered by military spending, and that is going down as well. this is going to be a huge economic shock. the foreigners have been

working hard to train afghans and putting them extravagant salaries. overall, there is going to be a very large economic shock. one of the things that will be terribly important -- and this is something that i give aid great focus -- credit for. trying to hold steadily to a course of action. this is fun to be very hard. washington's tendency to change. when things don't go well, this is a place like to talk about policy. everything -- we like to change the policy. an awful lot of the problem in afghanistan is the implementation. it takes years to do something so when you switch constantly,

you were always letting other things drop. your enthusiasm becomes like a small child that walks away from a complex prop -- project. you need to stick with things. you need the ability to change, to analyze what you are doing. aid gets criticized a lot for what happens to contractors. the contractor model is deeply flawed. for one thing, you hire a contractor to do whatever you hired a contractor to do. you do not hire a contractor to come in and tell you that you are wasting your money. you have a lot of trouble when we have all of the movement -- until we allow aid to grow to a level of staff for it can

actually do things again, and until we give them more legal flexibility in how they contract, they will continue to fight with work around fixes to a model a cannot alter. we need realism in this town -- to a model they cannot alter. we need realism in this town. we cannot cut this agency to the bone and expect that it performs better than it did. when i first went to afghanistan in 1967 -- you reduce the organization by 10 times, you raise its budget enormously, and then you say, why are you all screwed up? as we go forward now, steadiness is going to be enormously important. convincing the world we're going to stay.

there is no more important point about succeeding in afghanistan than that. the majority of the problems we have with pakistan are based on the strategic view that we will not stay and that afghanistan will crumble. the fact is that if we do not convey a message that we will stick, we constantly undercut everything else we are doing. we are such a major player in afghanistan that everyone takes position on what they think we are doing. whether they are friends or enemies. insurgents take position on whether they think we will bail out. they do not worry about whether the afghan army is gone to win. the question is whether they will be strong enough not to lose. we're not winding down the war.

we're winding down our part of the war. we may run out of national commitment, i hope we don't. we will take a serious price for that. our most critical challenges in afghanistan, i believe, is to make up our minds that we are going to stay at a level sufficient with the country -- so the country will not lose. that changes the entire political and economic dynamic. i fear that what we will do, we will manage to stay in another decade, but every year, it will look on certain so that we never reap the strategic benefits of the effort that we actually make. we're pretty good at that for a number of reasons. the fact remains that in the aid program, in the politics and in the military, our ability to project steadiness is going to

be enormously important. with deep respect to what alex had to say it -- we cannot describe to the american people what we intend to do in 2015 and afghanistan, we are not contained an image of steadiness. that is a political choice which will have to be made after november in this country. if it cannot be made now. it will be the major choice of the next administration whether it is a continuation of president obama or governor romney. if we are going to state in afghanistan, even if it is more

modest, but be honest about it. if we are not going to do that, we are causing americans to die for a fallacious policy. let's stop saying that we're winding down a war that we are not winding down. we're winding down our presence, and that is a statement of fact. we're not winding down a war. we need to say, what is this relationship of 2015, 16, 17? not in perfect detail, but in sufficient detail that we can see a year from now that we have retained a steady course. that is not what they see today. today, they see a level that was half what it was last year.

and has put to a the most excruciating business of trying to -- and has put a for the most excruciating business of trying to downsize. they see troop levels that are rapidly changing. when you looked in that context of years of uncertainty, having lived that way your entire life, and you see the troop numbers get changed, decisions that seem somewhat unconnected to the ground on numbers, budgets that are affected as much by our deficit as our policy, we are not conveying -- this is a decision the next administration will have to confront. i hope we stay. thank you for all you are doing.

i can only imagines when you finally get out of government come and go back to your previous life, the wisdom you will bring from now having actually trying to do what you're talking about. >> i will focus the question to you, alex. and then we will go to all of you for the remaining time. another point we have been talking about already, the remarkable progress in the field. i want to commend our development and diplomatic workers as well as those in the broader international community. there have been some recent critiques of the so-called civilian surge. there is a lot of critique in the the mission. i personally would disagree with the notion that the civilian upsurge has not been impressive. i think it is quite impressive. plenty of caveat, including our strategy has sometimes had

trouble with the afghanistan challenge. the dedication of the people i of scene is very impressive. this is not all happy talk for me. i will wind up with a tough observation and a tough question about corruption. that is the 800-pound gorilla or elephant in the room. we're doing all these great things in afghanistan, but how come corruption is so bad? before i get to that, because it is also not discussed enough in washington, i want to commend those great afghan reformers who all of us know very well, especially these two gentlemen. i have had the pleasure of meeting and number and there are a lot of impressive people.

on the trip that we were on in may, i stayed for the first five days and we talked about afghan politics with a lot of important officials in and out of government. there were a number of hopeful signs. let me mention a couple. the minister of finance has been doing some useful things to make it harder to carry suitcases and money -- suitcases of money out of the country. i will not go into detail, but there is a general sense that there is some progress. i am not trying to say this is a happy place in terms of eliminating corruption, but there are significant steps. the army inspector general has been following through on a lot of the corruption cases you might have heard general petraeus talk about with army supplies being sold off and not being available to their soldiers.

they are continuing on with the criminal pursuit of the people. it was not just one time. there is a legal follow-up. that is one example i was informed about. we visited the asia foundation office, which is trying to encourage good governance at the local level and afghanistan. there are 34 provinces in afghanistan with an average population of close to a million each. for the most part, they do not have a lot of control over their budget because most of them are centrally controlled. there are now efforts to try to give these governors and a little bit more of a sense they have some control over their budget and the amount of money will be tied to their performance. there is a performance based governor's fund and the asia foundation administering this, i was impressed with the trend line.

things were getting better on average in their mind. they had an objective system of evaluation. i do not want to make too much of it. all of these things are somewhat mushy and you cannot claim that it is scientific, but their overall trend line was an improvement of 10 or 15% in the overall quality of local government. there are a lot of good people doing things with in afghanistan, even as our news accounts focus on the karzei elite. we wrote about this when we came back from our trip, as you probably know, there is an expectation -- all of this effort we have made over the last few years -- which is a fairly small number for a country of this size.

that is only about half the number of the iraqis have in uniform, for example. that will happen almost as soon as nato has withdrawn its forces. we raised a lot of questions about that particular planning assumption. i would reiterate that i hope this is not becoming an expectation among policy-makers. just because we're tired of spending money, we preemptively decide to downsize the force. i would want to raise some questions about whether in the pursuit of saving a billion dollars a year, at that we lose the war because of a false economy on downsizing the afghan security forces.

you may or may not want to address that. it is relevant to the broader question of financial commitment by the united states. by last point has to do with an area where i am a little sheepish to mention this because iran does not agree with me -- because ron does not agree with me. we need to send a strong message to them. we need to remind the afghans, this is conditional on you folks not electing a corrupt warlord in 2014 for president.

that may seem obvious. how could we possibly give a billion dollars a year to of regime that is hypothetical worse than the current karzei regime? we do not know who is going to win. we're not going to give $5 billion to $8 billion a year to that kind of government. we're not going to walk away. it is not credible that we will continue to treat afghanistan as our top two or three aid recipients internationally if the corruption problem remains such as it has been in afghanistan. we need to find some way to signal this. not to pick the winner of the elections. there are two or three people

with whom we cannot work. as a matter of fact, there are some people do u.s. congress is not going to support at the levels alex is hoping that we might. that is my last comment. how do we wrestle with the corruption challenge and make sure we do not give the afghans the sense they're getting a blank check from the international community? >> i think this issue coming back to where i ended and you ended of mutual accountability is fundamental. afghanistan has to have the government, and institution better capable and legitimate.

without them, they will not succeed. the decline will be slow, but it will happen. coming from both of these comments, something important occurs to me because i go to afghanistan it so much and have almost over 20 years, you have to be able to see afghanistan as the tale of two cities. people like to look in afghanistan and say, it is failing. the reality is, those things are happening simultaneously. there is remarkable progress in some areas. when you go into these afghan ministries that maybe had a good minister, maybe not, 10 years ago, had very few other people. today, you see the young graduates and the american university, men and women both, and the work they are doing, the deepening of the bench, it

is remarkable. when you travel around the country and see the infrastructure that did not exist.

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>> i do not think it is a political decision the way you are -- i think roberts had the view and the court had a duty to uphold the law of congress if there was a constitutional basis for doing so. he did not think it could be upheld under the commerce clause which was the way it was argued mostly. he did not think medicaid could be held as a mandate for the state. i do think he thought it could be upheld as a tax. that it was a reasonable way to decide this case. they have not struck down such a regulatory law since 1936. it does not strike me as

political heat, but as what he thinks he should do which is give the laws the benefit of the doubt. there is a constitutional basis for upholding his them, he would vote to uphold them. >> this was the major plank of a democratic president. the signature of the achievement of his domestic agenda. it was already a high hurdle in terms of, do you differ to congress? we are sitting here before a bunch of lawyers and law students who get that maximum of a judicial decision making. and i do think it has served several purposes for john roberts. one was calling it as he

felt the law dictated. >> i give him the benefit of that doubt to. it strikes me how little of that i've seen. i wonder whether you guys as people who cover the supreme court think it is part of your job to stay and in what to print, maybe he actually did call it as he saw it? >> that is when you cover it the decision and give the reasons for why the court said it did what it did. i think the reactions that it was a political -- it was all from the left at first that this was going to be a political decision now it is all coming from the right. these are reactions that this is a very divisive piece of legislation.

the public is very split on it. we have a poll out today that it is almost exactly even for the people think the court did the right thing and the wrong thing. that does show that it is something that is pushed and should be pushed into the political realm. if people want to overturn it, they know who to vote for. >> one point about polls -- 41% of americans do not know there has been a health-care decision. [laughter] >> we were under enormous pressure, and i think it worked out great.

my first analysis walked through exactly the points you were making. even quoting that if there is a plausible basis on which to uphold the statute that is susceptible to multiple interpretations, it is the duty to defer to congress if you can. >> if you look at this decision and were not following it closely, based on what we thought going in, you might say that eight of the nine voted as you would have a boat -- a guest. -- have guessed.

the other republican justices voted to strike down that law entirely. all 900 pages. only one and justice voted in a way that you would not have guessed. looking at his background. a republican appointee, and a relatively conservative justice voted to uphold the law. it seems to me that the last person who should say it was political is john roberts. >> there is another piece about this lot that my guess is a very few people around the country debt as a legal matter. that is when the massachusetts passed a similar law, there was

no constitutional lawsuit as far as i know. everyone at this table knows the difference, and he went to some pains to explain that difference. is that something that any of you have written about in the course of covering this issue? >> i recall doing a piece on justice kennedy's perception of liberty as something of baked into the federal structure.

i do think that distinction it came up, but maybe not enough i do think most below could articulate the limits on what that might be. >> every time i wrote about it i would get an e-mail about someone making that point. why is it ok to mandate car insurance? i would write back that the federal government has different powers than the states do. not a very satisfying rationale. eycare, is it a tax? >> if you make the point about how much do we explain or not explain, and often we are limited in terms of what we believe the public's appetite is for a case. in this situation, almost all of us wrote some heavy-duty things

about the commerce clause and the taxing powers on the more popular political question there. people really had an appetite for all things healthcare. we had more of an incentive to this time around. it was so difficult to explain. this time, it was easier about the federal powers. >> we have all talked about this aspect. there has been more interested in this case than in anything i have ever covered at the supreme court. i have been asked about it by everyone i meet knows what i do.

the appetite has been there for stories. both from the public and from editors. courts how much preparation did you have to do for this case? did you need to educate yourselves on how the affordable care act works? how deeply did you dig in on anticipation of this situation? >> i knew the legal issues and that is what i felt we needed to know. we have lots of people at the paper who do know a lot about how it works or will not work. this was another one of those huge things.

it became unmanageable almost. there was so much information there. you depend on some people to point you oto the ones that will shape their argument. there are millions of briefings on this. by interest groups and conservative groups. after a while, we had a good idea what the issues were. >> i do not think our practices are much different than the justices are. i read the briefs from advocates i trust. i read the briefs from groups who have something interesting to say. i do not read every single brief nor do the justices.

>> all of us had to figure out how best to be prepared. deedrick was how we be ready for what they are going to do many of us had to pre write different versions of what we thought would happen. but i found you get perspective. we were surrounded by a sea of paper and it is a matter of what will be most useful to you when the time comes to distill the documents that we get. >> i thought this was interesting for many reasons i think most of us thought the court was likely to uphold the law because of the long

president on the commerce clause. i came out of the thinking they were going to strike down the entire lot. -- entire law. i went through a period of thinking that john roberts would not want to go along with striking down that entire lot. they seem to buy the idea and that the medicaid expansion is unconstitutional, too. i remember saying to my daughter that i thought there were going to strike down the mandate and doubled the tax penalty. suppose congress passed a lot that required american families

to have children or pay tax -- tax penalty. that has got to be unconstitutional. if you don't have children you pay higher taxes is sort of how our country works. i did write a story saying at but they're going to split the middle. >> what were your mornings like last thursday. how did the day go? >> i think they were dramatically different for two sets of us. some of us were in the court room which turned out to be a huge blessing. that is old school.

the rest of us were rushing around making mistakes. [laughter] i have not heard it yet. >> oh any of the things we did for monday is we had set up a system where we had certain code words that we would use. literally, we are standing no less than 10 feet away from where we are getting an opinion, but we wanted to make sure we could get it out as fast as possible. we stationed one person inside the press room. i actually had an open line to our bureau, waiting for the code words from mark sherman about what the decision was going to be. >> can you reveal the code words? [laughter] >> summon and falconer. [laughter] >> it is really simple. upfold all, uphold mandate,

throw down all, throw down mandate, premature. once mark got to the correct part of the decision and saw it, he relayed the code words to me. i repeated it back to him. i had in mind the football game where the referee misses what the guy says who calls it in the air. i wanted to be sure i completely understood what mark was saying, that we were using the right code words. literally, all of this happened in a minute. we filed. we split the decision. he read the majority opinion. i read the dissent. we ran from there. >> some members of the press can sit in the courtroom, in the press gallery, which is on the left-hand side, facing the justices. usually, they get up and leave

as soon as the decisions are being handed down, even though the court may go on to other business, like the supreme court bar, which can take an eternity. but there is also a press room one floor below, which has a speaker. you can hear the audio. as the decisions are handed out, the public information office will pass out copies of the decision. so if you are sitting down there, you can be on your laptop, transmitting. >> that is not quite true. they would not allow you to take any electronic devices into the rooms. we had to have two people, because we could not have electronic devices in the room. >> is that the usual practice? >> phenomenal usual practice, but i do not know that people care so much. >> this is the first really big decision in the web area. it used to be that h-p had to do this. i remember in the stories i started, they can't of the --

opinion. out the alan balki wins on a 5-4 vote. everybody knows the decision for the last paragraphs, that the university can use race as a plus factor. the reporters that had to jump said the university of california lost, a big defeat for affirmative action. turned out to be not true. all of us wanted to rush on this, but i wanted to look at the syllabus and go through each point and make sure i had counted the votes right. i thought there was a good chance on the tax power that they might do it, but i stayed downstairs. it would be nice to be up there for history, but our website

wanted to post something quickly. i wrote a couple of pieces in advance. one of them was, upfolded on the tax power. it took me a minute to go through. i called the desk and said, opposed the story on the tax power. but it was a lot of fun. there is always a danger. i did not watch the tv coverage. i take it some of you might have. there is always a danger of making a fool of yourself by being the first up with the wrong story. >> that was sort of the beauty of being in the courtroom. it was not unlike balki. as the chief announces his opinion, hopefully it takes only 20 minutes. if you were about to-off with the first decision, you would rush off with "do not justify the individual mandate."

he spends that out. then he runs on to the taxing level. it helps to digest all the different pieces. the thing that was equally helpful was the medicaid part. he said the medicaid expansion was struck down. unlike david, i never thought they would go that far. i thought that would be so dangerous to the spending power of congress, and they would not do it. but then he says, there is a remedy. it is almost like you in some ways were being fed a story, and you could digest it in a way that was easier than what they had to do in the press room. >> the solicitor general must have aged 10 years.

he was sitting directly in front of the justices, as close as this. roberts took that guy on a roller-coaster ride. down on medicaid. wait, wait. i felt bad watching him. >> that was the end of a three- month roller-coaster for him. >> you have written about this, i think. unless i am mixing you up with somebody else. about the criticism after the argument and his ultimate in vacation. >> the ultimate vindication? >> that is another fascinating story. i said he might have lost on style points, but won his case. particularly the blockers on the left were merciless, taking the metaphor that he caught in his throat and was unable to speak about as a sign he had flubbed the case.

anybody who follows the court knows they do not decide cases based on that. they also care a lot about the briefs. he insisted on keeping the tax argument in the case. made a very good presentation about saying, if you look at how the law works, it is not a mandate. you do not get prosecuted are taken to jail. it is a tax law. it works like a tax. therefore, it can be upheld as a tax. there was not a powerful counter to that. it is an interesting story. everybody wrote about how he had lost the case at the oral argument. vary greatly overstated. it ends up that his argument turns out to be the winner.

>> as you all know, scotusblog is now doing a live blog on decision days. on thursday, they had 866,000 people tune in at one point. more than 3 million hits to the web site by about 1:00 that afternoon. does that fact change the job that you do at all, the fact that people have, in effect, direct access to the news as it is breaking, easy access to the opinions of minutes after they come down? or is that such a different audience from yours that it does not matter? >> i will add that it is what we do anyway. in addition to writing stories on opinions, i also write to the a.p. twitter site. we have a very general office.

we publish to everybody. they are doing what we started doing years ago. we just do it in a different way. >> where were you? i guess you were not in the press room, with no electronics. >> i was on where our offices are in the press room, reading the dissent, tweeting and writing. >> it has changed life completely four newspaper reporters. people want things very quickly. they want to be able to come to the web site and find out what happened. they want alerts. they want twitter feeds. it is a huge difference. we have hour-long meetings about what color possibilities could be, that we could make

sure would be correct. we sort of disposed of saying health care upheld, because we thought it would be too much of a split decision. we went with individual mandate upheld or individual mandate struck, as an alert possibility. you think about these things that you never thought in a million years you would be thinking about. >> scotusblog is an extremely good work. lots of sources of information are good. i am delighted. >> unless anybody has something else to say about health care, maybe we should move onto other things. >> there is something else? >> was there something else? >> justice scalia did not have anything to say or early on thursday. he did come up last monday, at descent from the supreme court decision on the immigration case, sb 1050.

there have been remarks about president obama's decision to exempt certain people from immigration enforcement action, something obama announced after the case had been argued. let me start with david. you started covering the court about when scalia arrived. was this normal? or is this a step beyond that? >> it is a lot of normal scalia. i thought for 25 years that all supreme court's ended with a rush of decision in late june and a fiery scalia dissent. there has been almost no year. almost every year, there is a really scalia lambast one side or the other. >> i can tell you when it started. the end of his first term, in 1987, nine minutes of him complaining about where the

court had gone on the independent counsel statute. other memorable -- a gay rights case out of colorado. he has one just about every term. it is always vintage. it was interesting that he would go outside the record and complain about the order from the president on young people who were brought by their parents illegally and are undocumented. he got a lot of really negative press on it. a couple of people even suggested he should step down. frankly, i think he will still be doing what he does. >> i thought it was an early sign that things were going to go bad the rest of the week. usually, when he is on the warpath at the end of june, it is not just one decision. somebody has let him down in a big way. there has been a lot of debate

over whether scalia's dissents have helped or hurt his cause. he is well known around it. you have here scalia. early in his term, early in his career, he wrote very few majority opinions. he has strong, clear views on the law. he had some zingers that people could remember. the downside is that you have the impression, i think, that he has alienated some of his colleagues over the years -- justice o'connor, justice kennedy. he really lambasting them. it will be interesting to see whether there is any lasting divide between him and john roberts. >> speaking of lambasting, justice alito's first oral dissent in 5.5 years in the previous week in the juvenile mandatory life without parole case.

he orally dissented from justice kagan, the majority, sitting right next to him on the bench. he was looking up most of the time. it looked like he was just reading from notes. he excoriated the court for, as he saw it, completely losing its anchors on the cruel and unusual punishment clause. was that a surprise, that he was so vigorous in dissent? out of all the cases, that pulled his chain so much. it affects a relatively small number of people. a few juveniles who now have life without parole will presumably get reese sentenced and can get life with the

possibility of parole. it is an important decision, but did not seem like the kind that would set somebody off the way it's set him off. >> he is a former prosecutor. the point you made it is interesting. on something he has done is take an entire category of people from an official penalty. no juvenile can be sentenced to death, no matter what. the juvenile who committed a non-homicide crime can be sentenced to life without parole. all this recent decision said is you cannot automatically sentenced a juvenile to life without parole. you have to take account of their youth. that does not sound like an especially radical proposition, and would seem to be in line with what the justices do in sentencing since the beginning of time. they take account of the facts and circumstances. it was unusual for him to dissent orally.

bob wrote about this nicely, i think. an interesting interplay between justice kagan, who announced the majority decision, and usually does that job with great cheer, and is a lot of fun to listen to, and here, she sounded very grim. you did not know why that should be, except she knew what was coming. alito late into her in a way that must have been unpleasant to hear. it was probably her first experience on the receiving end of an oral dissent. >> she has not learned the stoneface yet. she cannot look around the court like it does not bother her at all. >> check your blackberry. >> it seemed to bother her. with that case, it did not seem to be going all that far from what the chief justice decided in a previous case in which they said that everyone -- juveniles who did not commit murder should have a chance at

parole at some point -- could not be sentenced to life without parole. the chief justice wrote at the time about how judges needed to have the ability to look at individual cases and make those kind of decisions. he was arguing against a blanket decision on that. it was a little surprising, i thought, in that way, that it got justice alito so worked up. >> justice alito was on the receiving end of one of those his first term. he wrote the 5-4 opinion in the lily ledbetter case. i think he viewed it as a matter of statutory construction. you have to file within 180 days. he wrote this opinion. i think he was unaware until that day that ruth ginsberg was coined to deliver on oral dissent. she really delivered a zinger at him and the court that suggested they were blind to the idea that women were being

underpaid. they had no idea that the men were making a lot more. the court was, in effect, countenancing that, and congress needed to step in and change the law, which they did. i am told that alito found that a welcome to the supreme court. [laughter] >> another fight with an oral dissent, the plea bargaining cases back in march -- i was out of the country, so i did not see the decisions or press coverage at the time. it strikes me that maybe after health care of those might be the most important decisions of the term, in the sense of how much future litigation they will spawn and how many people they will affect, since plea bargaining is involved in 95- plus percent of all criminal cases, federal and state. these see that as a case that will be important in the future?

>> we played it really big. it may give rise to lots of litigation. i do not know, as a practical matter, and i think most people who do sentencing law will agree it is not going to get a lot of redo's. if you have to prove a lot of things like how your lawyer failed to deliver the fact that a plea offer had been made, and that other things would have happened down the chain of events. as far as i know, there has been one case so far where someone has gotten out on this ground. maybe it is a big deal, but i am not sure. it is a big deal symbolically, because it brings the constitution to a dark area of the law. the court is really focused on

trials. only three to five criminal cases goes to trial. -- paul -- not many criminal cases go to trial compared to those that are sentence. the court interpreted a recent narrowness of the disparity in crack and cocaine sentencing. that will affect people. i do not know that the guilty plea case will. >> a surprising part of this term is that criminal defendants won most of the big criminal cases, which is not the norm. there was the case about gps, a drug dealer called jones, a nine-one reversal. they said the government cannot use a gps device without a search warrant to track everyone

everywhere. there was the juvenile life without parole case we talked about. the plea bargaining case. and the one atom just mentioned, the crack cocaine sentencing case. in all those instances, the criminal defendant w. owen -- defendant won. there was a case where a lawyer abandoned a man on death row. there was a case in louisiana with hidden evidence. >> a. brady problem. >> another new orleans problem, where they hid evidence. it is always a surprise in a court like this, where the majority of the big criminal cases come out where the defendant and some of winning. >> you can search them though, right? >> the strips search case was not nothing. but in all these cases, kennedy was in the majority, often with

the liberals. he does have a sense of -- i do not know how to characterize it exactly right. but his sense of fair play is offended when the criminal justice system imposes disproportionate penalties. >> talking about what comes most importantly after health care, you have to take account of the message that was so strong in the arizona immigration case. he wrote the opinion that sent a clear message to the states that this is a matter for the federal government and, regulating people within the borders illegally. i thought it was a pretty strong signal to places like arizona and other states that have followed up with soda ash called copycat laws. there is only so much you can do. they did let stand the one that could potentially lead to some racial profiling, the show me your documents one. we do have to look again at immigration.

given where they thought they would go, the majority decided in favor of the federal government. >> and the chief justice. >> sort of a warning that we will be watching to see how this plays out. >> that may be another instance of this jump-the-gun interpretation. everybody is focused on the "show me the documents" decision. but you need to read the opinion and understand how limited that holding was, and how broad the enforcement of federal power was in other parts of the decision, before you can write properly. >> this flew under the radar because it came out on the same day as the health-care decision, but the court continued its strong position on

the first amendment, with the lying about military medals. that came out on the same day as the health care case, so a lot of people did not see it. the court has consistently said that despite how despicable the language is, americans have strong first amendment rights to say what they want to. they said it with the animal crush videos. they said it on american flag issues. the have said it is your first amendment right to lie about whether you have a military metal or not. you can see the trend pretty clearly from the court on the first amendment. it just happened to come out the same date as the health-care decision. so it slid under the radar for most people. >> that was heard in late february, the alvarez case on the stolen dollar issue. it took a while to iron out, just like it took a while to iron out the federal

communications commission in decency, the fleeting expletives. they said there -- the first amendment cases are so different from the other issues. the often cut across the is ideological divide. clearly, it causes some problems as they are figuring out where to go. >> the thing i like about that case is it allows me to talk about my career as an n.b.a. all-star. [laughter] my various war medals and things i have done earlier in that career. >> the stolen valor case might have been even more satisfying if there had been a majority rationale. in fact, it was eight plurality which was a categorical, and two justices come up with a proportionality test that is very hard to make sense of. >> have there been any inside

rumors, the way there have been in the health care act, about what caused justice kagan to split from what would have been a solid five-judge majority? >> i have no insight, but it is perfectly consistent. when she was a young professor at the university of chicago, she did a lot of first amendment work. it was nuanced to the point of unreadability. it is consistent with his concurrence. >> what is different between "usa today" and reuters, and are you working on another book? >> do not make her talk about that. >> and is there any competition? >> the new book is not a biography in the vein of the

o'connor and scalia books. this is more anatomy of nomination politics, looking at the social and political history that led to the appointment of sonia sotomayor in 2009. i track developments from the year of her birth, which was the era of brown versus the board of education and hernandez versus texas, when latinos became a protected class. it means of neatly with her life. it is mostly going to be a political book. i was working on it really intensely, getting a lot done. but my new job is a little harder to go home at night and work late on. it will probably come out in 2013. she is doing her own memoirs. >> there is competition. >> from the woman herself. but since mine is not a biography -- >> what is she now? >> she said hers will come out in early 2013.

>> i hope it does, because i can modify what i need to modify. mine is more about the political history. a whole chapter, for example, about a man of people thought bill clinton might put on the court. there was a controversial nominee to the d.c. circuit under george w. bush. you can await that. reuters is a wire service, like a.p., but i am not quickly filing alerts the way jim matheny had done. i look at broader trends. i do not have to file every day, but it is the wire, so you have to fill a hole faster than you would for the newspaper. >> is anybody else working on a book they want to out?

>> not yet. >> you did a biography of justice o'connor. are you still in touch with her? what is she up to? >> she is on an airplane. she is always traveling. i asked if she would be in the room for health care. she said, "i have so much planned." i asked her if she had an instant. -- an instinct. she said, i have not even had time to read the statutes. do you know which way they are going? no clue. it turned out that she was in the courtroom the week before. all the speculation about when it will be handed down -- nobody knows until the writing on all sides is finished. she did not know exactly when it was going to come. she could have suspected, the way we did, that it would come on june 28. she was in the courtroom the week before.

in many nervous when she showed up. but it was not for a big case. she was not even there for the arizona emigration case. she is still doing her sixth thing, out there all the time as a very active retired justice of the supreme court. >> i did a feature on her last fall, all the things she was doing. when i was interviewing ar, joan does such a good impression. i kept thinking, she sounds exactly like joan. >> i spent way too much time with her. >> i do not know if you guys could see from all the way across the court room, but justice stevens walked in and took a seat in the special guest area. he seems to be doing very well at 92, making speeches and giving opinions on cases. are the current nine active justices in as good shape as he is? are there any retirements likely to be seen in the next year or two, do you think, for

health reasons or otherwise? >> one of the things i did before covering the supreme court and the warehouse is a covered south carolina and strom thurmond. i am pretty much used to them staying around forever. [laughter] >> the general view is the summer we know we are free to go on vacation is the summer of an election year. nobody willingly retires during an election year. before we all had up, i am sort of assuming nobody is leaving this year. nobody seems to be in bad health. after the next presidential election, the year after, people will start talking about retirements. fortunately, it is quiet on that front this year. >> the physical renovation of the courthouse has been going on five or six years now, and must be nearing completion. has that made a difference to the court? has that made a difference to the press? for a while, the public

information office was in a trailer outside. i am sure it was a great improvement when that phase finished and you moved back into the building. >> i do not think it affects us. it still bugs justice breyer that you cannot walk up the steps and go up the front door. he brings that up as often as he can. >> it does let you use the metaphor "closing the courthouse door." it is an imperfect metaphor. if you look at the court building now, they have to do repair on the front from the earthquake. a lot of the front of the courthouse is now covered with these sheets. they said they are putting up a scrum that will resemble the front of the courthouse, so you can see a pretend supreme court

while they fix the real one. >> the modernization that you asked about is completely done. the new work is a different project. closing the courthouse doors was declared by them, by the justices. it did not have anything to do with modernization. >> let us spend a few minutes on next term, before i open the floor to some questions. almost lost in last week's news was the third petition fired by paul clement asking them to book of the defense of marriage act case. he is representing the house of representatives. we are likely to see important voting rights act cases from the sea, and affirmative action case from texas, and perhaps the same-sex marriage case from california. any thoughts about what next term is looking like? >> the case we know they have taken is the affirmative action

case out of texas, which might bring us full circle. we do have a court with five members who are very skeptical of race-conscious government action, including university of admissions policies. while that case has vehicle problems and comes from a place with an idiosyncratic admissions process, fisher against texas is a big deal. i think they will take the doumit case. they love giving paul clement an opportunity to get back to the lectern. if same-sex marriage people had to choose between whether a federal law has to track benefits in states where people are already lawfully married, not shoving marriage down the throats of anybody, but merely making the federal law congruent to state law in an area where state law has traditionally governed, that is a simpler and easier question

than the proposition a case would present. >> i agree with that. on affirmative action, the thing to watch is whether it will be a texas-only case or a national case. >> i would bet the white plaintiffs are going to win somehow in that case. otherwise, there would not have taken it. texas had a top-10 system. the top 10 graduates of high schools around the state were automatically admitted to austin. they had a good amount of diversity through that system. in addition to that, texas started using race as an emissions factor. the challenge is really to the extra use of race. the court could say as long as you have got diversity through this one system, you cannot go beyond to consider race. that would be essentially

limited to texas. on the other hand, they could say more broadly that any use of race is unconstitutional, and we disavow what was said in the michigan case. that would be a big deal that would affect universities all around the country. >> it is interesting how different it is around the country. california has a constitutional amendment that disallows using race in college admissions. it is interesting that this case comes from texas. it seems if there was any legislature that would rule that you could not use race in university admissions, it would be the texas legislature. i do not know why that is the place for this case. but it makes it even more interesting, i think. >> a little side note, since this is a legal audience. texas had urged the court not to take the case.

texas is a generally conservative state. it is a republican attorney general. they did not want the court to go further on restricting affirmative action on campus. after it was granted, texas hired a lawyer who used to be a solicitor general. in our group, the hiring of him upped the stakes in some way, in terms of what the representation would be. he has a very fine reputation. he won the naples case we talked about. it will be a well-fought case. in some ways, to have somebody with the conservative credibility of having been in the bush administration as solicitor general, and coming at this in a non-ideological way, will help texas. >> he did a good job in lawyering through a difficult case involving a christian legal society and a law school,

and whether it could bar gay students from leadership positions. so i agree with john that having greg in the case makes it more interesting. >> let us open the floor to questions. i am going to give up my microphone. staff will stand with the microphone. come to it so you are able to be heard. >> i have a quick question. with regard to the health-care decision, not so much the health-care decision itself, but the medicaid part of the decision that was struck down, the reason i ask this is in my law practice, i deal a lot with severely disabled children. i have also announced that i will be running for governor of virginia as a democrat, at least in the primary. from a practical point of view,

i do not seem most turning down the medicare expansion. maybe a state like virginia, if a republican is elected, i could see that happening, but i do not see the majority of governors turning down that expansion. what is your thought? >> head toward the mic with the next question. >> the federal government will pay for 100%. in principle, you might say, i do not want to expand, but you would have to explain to the public that i am turning down millions of dollars in federal funds to pay for health care for poor people, and our tax money is going to go to other states that are getting it.

i would think as a practical matter, even if a lot of states did not like the expansion, that down the line there will say, ok, if you are paying 100%, we will take the money. >> some governors are saying it goes down to 90% later, and even the 10% is a budget buster. i think i read that florida has announced it will turn it down. >> south carolina as well. i think it is a decision that does not have to be made at this moment. it is easier to say right now, we are not going to do it, then it might be later. >> it is a great read state-blue state divide. i would think the blue states would say, be our guest, if that is what you want to do. >> if a couple of states opted out, maybe it would not have a big impact.

but if it was a patch work around the nation, which into possibly seat and an enormous emigration of old, sick people into the states that adopted index and maybe the states that are losing all their old, sick people who need medical care. >> all people already have it. but poor people -- we are talking families that make up to $25,000 a year. these are authentically poor people. those people could lose out. those poor people would be wise to move to a state where they would get medical care. >> it is hard to imagine that over the long run that a state is going to turn down that type of money permanently from the federal government. governors change. political parties shift.

it is easy to say it right now, before you are getting any of the money, that we do not want it. it is hard to see, 10 years down the road, that a single state or two is going to say, you other 48, take our money. it is hard to see that. >> what i wonder more is whether a lot of people will decide to opt out of the insurance purchase and pay the tax penalty. you can save yourself thousands of dollars a year by making that choice. if you know, if i get sick, i can buy insurance, why not save that money and use it to have a better life in the meantime? >> the people might legitimately made that choice. the law allows it to happen. there are no civil penalties for it. but the thing is, what do you have? if you put the money into a health insurance policy, you

have the health insurance. if you pay the tax, you have just given it up. it is a valid question, what people will do. >> if i were healthy and 30 years old and could have an extra $2,500 in my pocket to go to the movies, take a vacation, by an engagement ring for somebody, maybe i would rather have that, knowing that if i get sick next year, i can get insurance. >> you are not 30. >> i am not 30. i have insurance. >> in my mind, there is an inconsistency in justice scalia not looking and legislative history, but giving a lot of weight to original thinking. it would seem to me that you can do one or the other. i think if he would look at what somebody from south carolina felt about the constitution in the 1700's, it would be different than what somebody felt in new york. i was wondering if anyone on

the panel could reconcile, to my mind, that inconsistency. >> we have a scalia expert here. >> i should defer. >> he goes back to the framers. his beef on legislative history is that it is not as contractual as the 18th century information, because it is not what was actually passed into law. he says the speeches on the floor, the committee reports, and the artifacts of legislative history are not what got signed into law. the bill got signed into law.

that is his argument. it seems inconsistent to plenty of people for plenty of different reasons. the majority of the supreme court still has a high regard for legislative history. >> i think they can be reconciled. he does not want to know what was in the minds of contemporary the legislators when they passed a law. he wants to know what the words meant. he does not care about intentions. he wants to know the original public understanding. i think that is not very different from reading the fine text of a statute. >> i have a question about the affirmative action case that is coming up. i just want to hear a little bit more about it. i had heard that potentially the decision -- justice roberts was potentially lining himself up to strike down affirmative action. if you have any thoughts about

which way justices might go, or which way they might be swayed, i would be curious. >> i think justice roberts has made it clear that he has little use for affirmative action-type programs. you will remember that he wrote the decision in seattle cases in which race was used as a way to balance out school populations. he was quite critical of that, and was only held back from saying the schools could not use race at all by justice kennedy, who was not ready to go that far. he came up with sort of a different test that can be used in this situation, but not that situation. it seems pretty clear that there are a least for a very strong votes, and then just as kennedy. >> we have had four new justices join the court in recent years. almost none of those matter, in terms of vote switches. there were basically 141.

the one that matters was alito for o'connor. it means the same group of five now tilts the other way. i think there is some reason to think the affirmative action regime we are used to may go down. >> this is the 50th anniversary of maker versus carr. i worked as a law clerk on that opinion. something that struck me recently, looking at cases regarding representation, was the opinion of justice scalia that it is not a usable basis for upholding are drafting legislation, much less judging it as a justice. it as a justice. apart i think justice warren